Massachusetts Wiretapping Law Strikes Again

Posted December 12th, 2007 by Sam Bayard in

Boston Now reports that Peter Lowney, a political activist from Newton, Massachusetts, was convicted last week of violating the Massachusetts wiretapping statute (Mass. Gen. Laws ch. 272, § 99) and sentenced to six months probation and fined $500. The criminal case arose out of Lowney's concealed videotaping of a Boston University police sergeant during a political protest in 2006. Apparently Lowney was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the Brighton District Court ordered Lowney to remove the footage from the Internet.

The Massachusetts wiretapping statute criminalizes "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication through the use of an "intercepting device" without the permission of all parties to the communication. The statute provides that a person who "willfully commits an interception" may be punished with a fine of up to $10,000, imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. Most states and the federal wiretapping law permit secret recording of a conversatino if one party to the conversation consents.

Eugene Volokh and Daniel Solove both posted about the Lowney case yesterday, and both do a good job at pointing out why the Massachusetts statute is wrong-headed from a policy perspective. It makes little sense that a statute aimed at protecting privacy should be used to stop the recording of public officials engaging in a public function (in public no less!). The reach of the statute doesn't just affect citizens who legitimately want to document mistreatment at the hands of government officials, but impedes newsgathering as well (note that Lowney himself appears to have taken on a journalistic function when he posted his footage on the Internet). Solove sums the situation up well by quoting from the dissenting opinion in another Massachusetts case involving the wiretapping statute, Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001):

The purpose of G.L. c. 272, § 99, is not to shield public officials from exposure of their wrongdoings. I have too great a respect for the Legislature to read any such meaning into a statute whose purpose is plain, and points in another direction entirely. Where the legislative intent is explicit, it violates a fundamental rule of statutory construction to reach a result that is plainly contrary to that objective. . . . To hold that the Legislature intended to allow police officers to conceal possible misconduct behind a cloak of privacy requires a more affirmative showing than this statute allows. . . .

The statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions. If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.

Incidentally, this is not the first time that the Massachusetts law has been on our radar screen. In 2006, Mary Jean, a Massachusetts resident and the operator of the website Conte2006.com, posted a video to the site that showed state police engaging in a warrantless and possibly unconstitutional search of Paul Pechonis' home. The video was recorded by Pechonis' child-security system (or "nanny cam"), and Pechonis himself gave the video to Jean. On Feb. 14, 2007, the Massuchetts state police sent a cease-and-desist letter to Jean demanding that she remove the video within 24 hours or face criminal action under the wiretapping statute. Rather than removing the video, Jean filed a lawsuit in federal court requesting an injunction to prevent the Massachusetts police from pursuing legal action. The district court granted the injunction, and the First Circuit Court of Appeals affirmed, holding that the First Amendment barred the Massachusetts police from prosecuting Jean for publishing the video, even assuming she knew that it was unlawfully recorded. (Please see the CMLP database entry, Massachusetts State Police v. Jean, for details.)

The Jean case is obviously different from Lowney's because he actually made the recording at issue, and the State presumably prosecuted him for the act of recording, not publishing the footage (although the details of the case are not clear based on the press report). Without the obvious First Amendment concerns present in Jean, this case draws into focus even more clearly the basic public policy shortcomings of the statute.